State Consumer Disputes Redressal Commission
Dr.Sukhwinder Pal Singh Sooch vs Jasbir Lal on 18 October, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.1592 of 2005
Date of institution: 15.12.2005
Date of decision : 18.10.2010
Dr.Sukhwinder Pal Singh Sooch, Punjab Govt. Dental College and Hospital,
Amritsar.
.....Appellant
Versus
1. Jasbir Lal son of Sh.Hakumat Chand resident of Mohalla Sant Nagar, B-
VI/123, Quadian, District Gurdaspur.
2. Punjab Govt. Dental College and Hospital, Amritsar through its Principal.
3. Punjab State through its Principal Secretary, Department of Health and
Family Welfare, Punjab, Chandigarh.
.....Respondents
First Appeal against the order dated 03.10.2005
passed by the District Consumer Disputes
Redressal Forum, Amritsar.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Lt.Col.Darshan Singh (Retd.), Member
Mrs.Amarpreet Sharma, Member Present:-
For the appellant : Sh.Updip Singh, Advocate
For respondent No.1 : Sh.Sarabjeet Singh Kahira, Adv.
For respondents No.2&3 : Ms.Ishwar Devi, Sr. Asstt. Rep.
JUSTICE S.N.AGGARWAL, PRESIDENT
The question involved in this appeal is whether respondent No.1 was a consumer and whether the appellant had committed medical negligence while treating medically respondent No.1.
2. Jasbir Lal respondent had pain in his lower left wisdom tooth (in short "wisdom tooth"). For that purpose, he went to Punjab Government Dental College and Hospital, Amritsar respondent No.2 (in short "Dental Hospital") on 6.12.2001 which was under the control of Punjab State respondent No.3. He was accompanied by his wife Gurmeet Kaur and one Charan Dass. Respondent No.1 First Appeal No.1592 of 2005 2 (in short "the respondent") was advised by the doctor for X-ray of his wisdom tooth. It was got done. After examining X-ray report, the respondent was advised to undergo the operation of his lower left wisdom tooth.
3. It was further pleaded that on 10.12.2001, the respondent alongwith his wife and Charan Dass again went to the Dental Hospital for operation. The operation was performed by Dr.Sukhwinder Pal Singh Sooch appellant on 10.12.2001. The respondent was discharged from the Dental Hospital on the same day. However, the pain of the respondent in the tooth subsisted even after the operation. The pain was unbearable and continuous. The respondent continued visiting the appellant in the Dental Hospital. The respondent was advised the pain killer and injections to minimise the pain.
4. It was further pleaded that the operation of the tooth was not conducted by the appellant in a perfect manner. The appellant was so negligent in performing the operation of the tooth of the respondent that a foreign element/iron piece of an instrument was left in the jaw of the respondent. Rather due to his medical negligence, the infection developed and the pain of the respondent increased. The pain did not stop. It caused the stress, strain and depression in the respondent. It also led to heart problem of the respondent.
5. It was further pleaded that the respondent was admitted for heart problem in Tagore Heart Care and Research Centre Private Limited, Jalandhar (in short "Tagore Centre"). He was operated on 28.01.2002. Thereafter, the angiography was conducted on 24.10.2002 in Tagore Centre. The respondent was again admitted on 29.7.2003. The respondent had to spend an amount of Rs.2,31,000/-.
6. It was further pleaded that on 26.6.2002, the respondent visited the Dental Hospital with the complaint of unbearable pain. The appellant advised the respondent for the removal of another tooth adjoining the wisdom tooth. It was brought to the notice of the appellant that when the respondent had consulted some other Dental Surgeon, he had told him that some iron piece/foreign element was First Appeal No.1592 of 2005 3 lying in the place from where the wisdom tooth was removed on 10.12.2001. However, the appellant tried to conceal his negligence and removed another tooth of the respondent without any necessity.
7. The appellant was also told that due to his medical negligence, the respondent has developed heart problem for which he was operated upon in the Tagore Centre and for which the respondent had to spend an amount of Rs.2,31,000/-.
8. It was further pleaded that the appellant had not used fair and reasonable competence in removing the wisdom tooth of the respondent on 10.12.2001. Even when it was brought to his notice on 26.6.2002 that the iron piece/foreign element was lying in the jaw by the appellant but still it was not removed. The presence of the iron piece/foreign element in the jaw of the respondent could also lead to Cancer or any other fatal disease. The respondent had spent a sum of Rs.21,000/- on the operation and medicines for removal of the wisdom tooth and in taking the pain killer. He also suffered mental agony. Legal notice dated 21.5.2003 was served on the appellant, Dental Hospital and respondent No.3 but to no effect. Hence, the complaint for refund of Rs.21,000/- spent on the dental treatment, for recovery of Rs.2,31,000/- spent by the respondent in Tagore Centre. Compensation, interest and costs were also prayed.
9. The appellant filed the written statement. It was pleaded that Jasbir Lal respondent aged about 46 years was registered as OPD patient at Serial No.1 on 6.12.2001 in the Department of Oral Surgery of the Dental Hospital. He was medically examined. His medical problem was diagnosed and the surgery of impacted tooth of both lower last Molars was planned. It was to be conducted by Dr.Rupinder Kaur, BDS who was also doing Post Graduation in Super Speciality in the dental field. It was denied for want of knowledge if the respondent was accompanied by his wife and by any Charan Dass. Even in the legal notice dated 21.5.2003 served on the appellant by the respondent, it was not mentioned if the respondent was accompanied by anybody on 6.12.2001 when he visited the Dental First Appeal No.1592 of 2005 4 Hospital. Therefore, it is an after thought. It was denied for want of knowledge if Dr.Rupinder Kaur had advised the respondent for getting the X-ray of the wisdom tooth done.
10. It was admitted that Jasbir Lal respondent was operated in the department of Oral Surgery at Serial No.5 on 10.12.2001 under all aseptic conditions. The operation was conducted by Dr.Rupinder Kaur who was also assisted by Dr.Jugraj Singh (both BDS doctors doing speciality in the Oral Surgery Department in the Dental Hospital at that time). Both of them were qualified Dental surgeons. The endorsement was also made by Dr.Rupinder Kaur. After completing super speciality, both Dr.Jugraj Singh and Dr.Rupinder Kaur had left the Dental Hospital.
11. In those days, the appellant was a Senior Lecturer in the department of Oral Surgery. The appellant had explained and guided Dr.Rupinder Kaur and Dr.Jugraj Singh on their request for removing the deeply impacted wisdom tooth of the respondent when they were standing near the respondent. However, the appellant was not the Incharge of the Oral Surgery Department nor Dr.Rupinder Kaur and Dr.Jugraj Singh were getting training under his charge. The surgery was completed by Dr.Jugraj Singh and Dr.Rupinder Kaur. The respondent has concealed the OPD slip dated 6.12.2001 as well as the OPD slip of 10.12.2001 with malafide intention so that it is proved that the appellant had not removed the wisdom tooth of the respondent.
12. It was further pleaded that after the removal of the wisdom tooth, the respondent came to the Dental Hospital on 18.12.2001 when the sutures from the operated area were removed by Dr.Jugraj Singh. Thereafter, the respondent had come to the Dental Hospital on 26.6.2002. He was examined by another doctor working in the Oral Surgery Department. However the story of pain of the respondent was not mentioned in the OPD slip dated 26.6.2002.
13. It was further pleaded that the respondent had come to the Dental Hospital on 8.8.2002. Even as per the version of the respondent himself, he was First Appeal No.1592 of 2005 5 advised X-ray of left lateral oblique view of mandible by the appellant. The respondent never came to the appellant thereafter. The record of the respondent reveals that he had got conducted X-ray of the operated area from Bharat X-ray Clinic and Clinical Laboratory. The said X-ray report did not indicate any bony pathology. It indicated that the surgery of 10.12.2001 was a complete success. If there had been any pain in the operated area, then the respondent would have taken some treatment from some doctor but he had not taken any treatment for about 6 months after the operation.
14. It was further pleaded that the OPD slip of the respondent dated 23.9.2002 revealed that he was examined by Dr.Jeevan Lata, Associate Professor Oral Surgery. He was a doctor senior to the appellant in rank and experience. She had referred the respondent for the removal of another molar tooth. The said extraction as per the record of the respondent himself and as per the record of the Dental Hospital was done under Local Anaesthesia by Dr.Suresh, another BDS Doctor doing super speciality on 23.9.2002. Dr.Suresh was himself a competent surgeon. He had operated the respondent after obtaining proper and free consent of the respondent himself.
15. It was further pleaded that the respondent was getting himself examined from another Dental surgeon also which was apparent from the discharge slip dated 29.7.2002 issued by the Tagore Centre. It was repeatedly denied if the appellant had operated the respondent on 10.12.2001 and, therefore, the question of medical negligence on the part of the appellant did not arise.
16. It was further pleaded that the story set up by the respondent that due to the foreign material/some iron piece, the respondent had suffered the heart problem was totally concocted version as the respondent had taken the medical treatment for heart problem from Dr.Ved Kumar Gupta, Cardiologist, Amritsar on 2.5.2001 whereas the respondent had come to the Dental Hospital for the first time on 6.12.2001. It was denied that the appellant was a consumer. It was denied if First Appeal No.1592 of 2005 6 there was medical negligence on the part of the appellant. Dismissal of the complaint was prayed.
17. The written statement was also filed by respondents No.2 and 3. It was admitted that the respondent had come to the Dental Hospital, Amritsar on 6.12.2001. He was attended by Dr.Rupinder Kaur who was a fully qualified Dental Surgeon. She was doing her MDS at that time. The disease of the respondent was diagnosed as impacted right and left mandibular third molars. The respondent was advised to get it removed. The respondent then appeared in the Dental Hospital on 10.12.2001 for the removal of impacted left mandibular third molar. The operation for the removal of impacted left mandibular third molar was performed by a team of doctors comprising the appellant, Dr.Rupinder Kaur and Dr.Jugraj Singh. The respondent had come as outdoor patient and he was discharged after the successful surgery on the same day. The principles and protocol of surgery did not permit any person accompanying the patient. Therefore, the version of the respondent that he was accompanied by his wife and by one Charan Dass was denied.
18. It was further pleaded that as per the record of the Dental Hospital, the respondent had never reported for any post operative complications or complaint, whatsoever, prior to 18.12.2001 when he had come for removal of stitches. It was denied if any medical negligence was committed in performing the operation for the removal of impacted left Mandibular third molar. It was also pleaded that the appellant was a very competent and responsible doctor. He had specialised degree in this field and experience of more than 15 years. It was also denied if the respondent had developed heart disease because of the dental problem. Rather the respondent had the history of chest pain since 2.5.2001.
19. It was also denied if the broken piece of an instrument was left at the site of the operation by the surgeon while removing the wisdom tooth on 10.12.2001. The medical record produced by the respondent contained the report dated 8.8.2002 which does not point out to the presence of any foreign body in the jaw of the respondent. The record dated 18.2.2003 onwards of Sri Guru Ram Dass First Appeal No.1592 of 2005 7 Charitable Hospital, Amritsar mentions about the foreign body but does not give any radiological evidence relating to that foreign body but that cannot be attributed to the dental surgery conducted in December, 2001 particularly when the X-ray evidence of August, 2002 does not show the presence of any foreign material.
20. It was further pleaded that the respondent had come to the Dental Hospital on 26.6.2002 with the complaint of pain but it was denied if the removal of another adjoining tooth was advised by the appellant. It was denied if the appellant had extracted the second tooth to conceal the negligence allegedly committed by him while removing the wisdom tooth on 10.12.2001. The removal of the adjoining tooth of the respondent was advised by some other doctor after examining the respondent and the same was extracted on 23.9.2002 after taking his written consent. It was denied if either the appellant or respondent No.2 had committed deficiency in service. Dismissal of the complaint was prayed.
21. The respondent filed his affidavit Ex.C1. He also proved documents Ex.C2 to Ex.C46. The respondent also filed the affidavit of Charan Dass as Ex.C47 and of Gurmeet Kaur as Ex.C48. On the other hand, the appellant filed his affidavit Ex.R1. Respondents No.2 and 3 also filed the affidavit of Dr.Amarjit Singh Gill, Principal of the Dental College as Ex.R2. They also proved documents Ex.R3 to Ex.R7.
22. The learned District Forum accepted the complaint vide impugned order dated 3.10.2005 with costs of Rs.2000/- and directed the appellant and respondents No.2 and 3 to make the payment of Rs.25000/- as compensation to the respondent within one month, failing which, the appellant and respondents No.2 and 3 will also pay interest @ 6% p.a. from the date of expiry of one month till realisation.
23. Hence, this appeal.
24. The submission of the learned counsel for the appellant was that the appeal be accepted and the impugned judgment dated 3.10.2005 be set aside. First Appeal No.1592 of 2005 8
25. On the other hand, the submission of learned counsel for respondent No.1 was that there was no merit in the present appeal and the same be dismissed.
26. The learned counsel for the appellant pleaded that Jasbir Lal respondent was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. As per this provision, a person, who hires or avails of any service for a consideration only then he falls under the definition of 'consumer'. In the present case, since Jasbir Lal respondent had got medical treatment from the Dental Hospital, Amritsar respondent No.2 which was under
the control of Punjab State respondent No.3 and the appellant was working as a Senior Lecturer in the Department of Oral Surgery in the said Dental College under the Government of Punjab, therefore, the respondent had taken the medical treatment free of costs and was not a consumer.
27. In this context, reference can be made to the judgment of the Hon'ble Supreme Court reported as "Indian Medical Association v. V.P.Shantha and others, 1996 (1) Consumer Law Today 1". It was held by the Hon'ble Supreme Court in para 5 as under : -
"5. The National Commission by its judgment and order in Consumer Unity & Trust Society versus State of Rajasthan, (1992) 1 C.P.J. 259 (N.C.) has held that persons who avail themselves of the facility of medical treatment in government hospitals are not 'consumers' and the said facility offered in the government hospitals cannot be regarded as service 'hired' for 'consideration'. It has been held that the payment of direct or indirect taxes by the public does not constitute 'consideration' paid for hiring the services rendered in the government hospitals. It has also been held that contribution made by a government employee in the Central Government Health Scheme or such other First Appeal No.1592 of 2005 9 similar Scheme does not make him a 'consumer' within the meaning of the Act. Civil Appeal arising out of SLP (C) No.18497 of 1993 has been filed by Consumer Unity Trust Society, a recognized consumer association, against this judgment of the National Commission."
28. The Hon'ble Supreme Court considered the whole law of the matter in V.P.Shantha's case (supra) and was pleased to observe as under : -
"43. The other part of exclusionary clause relates to services rendered "free of charge". The medical practitioners, government hospitals/nursing homes and private hospitals/nursing homes (hereinafter called "doctors and hospitals") broadly fall in three categories :
(i) where services are rendered free of charge to everybody availing of the said services.
(ii) Where charges are required to be paid by everybody availing of the services and
(iii) Where charges are required to be paid by persons availing of services but certain categories of persons who cannot afford to pay are rendered service free of charges.
There is no difficulty in respect of the first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing of the service would not fall within the ambit of 'service' under Section 2(1)(o) of the Act. The First Appeal No.1592 of 2005 10 payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1)(o) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly falls within the ambit of Section 2(1)(o) of the Act.
44. The question for our consideration is whether the service rendered to patients free of charge by the doctors and hospitals in category (iii) is excluded by virtue of the exclusionary clause in Section 2(1)(o) of the Act. In our opinion, the question has to be answered in the negative."
29. The Hon'ble Supreme Court clinched the matter in para 45 of V.P.Shantha's case judgment by observing as under : -
"45. In respect of the hospitals/nursing homes (government and non-government) falling in category
(i), i.e., where services are rendered free of charge to everybody availing of the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall First Appeal No.1592 of 2005 11 within the ambit of Section 2(1)(o) of the Act insofar as the hospital is concerned, the said service would fall within the ambit of Section 2(1)(o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. The medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1)(o), being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing of the service a 'consumer' under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the employee-medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o)."First Appeal No.1592 of 2005 12
30. This judgment was followed by this Commission in the judgment dated 31.8.2010 passed in First Appeal No.390 of 2005 (Dr.Jajbir Singh Sandhu v. Dharam Singh and others).
31. In the present case, Jasbir Lal respondent in his complaint has only alleged that he has spent an amount of Rs.21,000/- on the operation and the medicines. He has nowhere pleaded if he had deposited any money in the Dental Hospital or with the appellant nor he has produced on the file any such receipt given by the appellant or by any functionary of the Dental Hospital. Therefore, the respondent was not a consumer qua the appellant or qua the Dental College.
32. So far as the heart disease of the respondent is concerned, the respondent has placed on the file the report of the Cardiologist Dr.Ved Kumar Gupta dated 2.5.2001 Ex.C6 which reveals that the respondent had chest pain and he had already gone to the Cardiologist. Therefore, the version of the respondent that the metallic foreign body which was left in the mouth of the respondent allegedly by the appellant while conducting the operation on 10.12.2001 had led to his heart disease, is without any basis. Therefore, there was no truth in the version of the respondent that he had developed heart disease because of the presence of the foreign material in his mouth allegedly left by the appellant while removing the wisdom tooth on 10.12.2001.
33. Since the respondent is not proved to be the consumer, therefore, the complaint under the Consumer Protection Act was not maintainable.
34. Accordingly, this appeal is accepted and the impugned judgment 03.10.2005 is set aside. However, the liberty is granted to the respondent to resort to any other legal remedy available to him.
35. The appellant had deposited an amount of Rs.13,500/- with this Commission at the time of filing of the appeal on 15.12.2005. This amount of Rs.13,500/- with interest accrued thereon, if any, be refunded by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days. First Appeal No.1592 of 2005 13
36. The arguments in this appeal were heard on 14.10.2010 and the order was reserved. Now the order be communicated to the parties.
37. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (LT.COL.DARSHAN SINGH(RETD.) MEMBER (AMARPREET SHARMA) MEMBER October 18, 2010.
Paritosh